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[Cites 15, Cited by 0]

Himachal Pradesh High Court

Floor vs United India Insurance Co. Ltd. And ... on 26 November, 2021

Author: Jyotsna Rewal Dua

Bench: Jyotsna Rewal Dua

                         1




    IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

              ON THE 26th DAY OF NOVEMBER, 2021




                                                    .
                         BEFORE





           HON'BLE MS. JUSTICE JYOTSNA REWAL DUA

          FIRST APPEAL AGAINST ORDER No. 298 of 2015





        Between :-

        ICICI    LOMBARD       GENERAL
        INSURANCE COMPANY LIMITED,





        414 VEER SAVARKAR MARG, NEAR
        SIDHI     VINAYAK       TEMPLE,
        PRABHADEVI,       MUMBAI-400025
        THROUGH ITS MANAGER (LEGAL)
        ICICI    LOMBARD       GENERAL

        INSURANCE COMPANY LIMITED, 4th

        FLOOR, PLOT No. 149, INDUSTRIAL
        AREA,    PHASE-I,    NEXT    TO
        HOMETAL HOTEL, CHANDIGARH
        (UT)
                                       ..APPELLANT



        (BY MR. JAGDISH THAKUR, ADVOCATE)

        AND




      1. SMT. SARESTHA DEVI, W/O LATE
         SH. RAJ KUMAR





      2. MASTER SUMIT THAKUR (MINOR),
         S/O LATE SH. RAJ KUMAR





      3. SHIVANI DEVI (MINOR), D/O LATE
         SH. RAJ KUMAR
      4. SMT. GARJO DEVI, W/O LATE SH.
         ASHOK KUMAR, (RESPONDENT
         No. 2 AND 3 ARE MINOR AND
         BEING SUED THROUGH THEIR
         MOTHER AND NATURAL
         GUARDIAN SMT. SARESTHA DEVI




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                                2




            i.e. RESPONDENT No. 1.


            ALL RESIDENTS OF VILLAGE PALANI,




                                                             .
            P.O. BADGRAN, TEHSIL BHARMOUR,





            DISTRICT CHAMBA, H.P.


                                   ..RESPONDENTS/CLAIMANTS





          5. PRITHI SINGH, S/O SH. THUNIA RAM, R/O VILLAGE
             KUTHAR, P.O. BADGRAN, TEHSIL BHARMOUR,
             DISTRICT CHAMBA, H.P. (OWNER OF VEHICLE No.
             HP-33-2533).





            (MR. ABHYENDRA GUPTA,
                                  ..RESPONDENT/OWNER

             ADVOCATE FOR RESPONDENTS

             No. 1 TO 4)

             (MR. NIMISH GUPTA,
             ADVOCATE, FOR RESPONDENT No.5)

             RESERVED ON :11.11.2021



            DELIVERED ON : 26th NOVEMBER, 2021




            WHETHER APPROVED FOR REPORTING : YES
    ____________________________________________________





                This Appeal coming on for pronouncement this day,

    Hon'ble Ms. Justice Jyotsna Rewal Dua, delivered the following





                          JUDGMENT

Learned Motor Accident Claims Tribunal Chamba allowed the claim petition preferred by the legal heirs of the deceased driver under Section 163-A of the Motor Vehicles Act.

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The claimants were awarded a compensation amount of Rs.

5,50,000/- with interest @ 9% per annum from the date of filing .

the petition till its realization. Aggrieved against this award dated 31.12.2014, the insurance company has preferred instant appeal mainly contending that :-

(a) the driver did not possess a valid and effective driving licence on the date of the accident.
(b) the driver is not a 'third party' within the meaning of Chapter XI of the Motor Vehicles Act. Therefore, claim petition under Section 163-A of the Act was not maintainable by his legal heirs. The appellant insurance company is not liable to indemnify the owner/insured with respect to liability towards the driver determined under Section 163-A of the Act.

2. Facts 2(i) A claim petition was preferred under Section 163-A of the Motor Vehicles Act 1988 (for short the Act) by the widow, two minor children and mother of the deceased Raj Kumar. Their case was that Raj Kumar was employed as a driver by respondent No. 5 on his Bolero Camper vehicle No. HP-73-2533. On 14.04.2013, Raj Kumar was driving this vehicle when the same met with an accident resulting into his death. FIR No. 14/13 in this regard was registered on 15.04.2013 at Police Station Bharmour, District Chamba under Sections 279 and ::: Downloaded on - 31/01/2022 23:20:24 :::CIS 4 304-A of the Indian Penal Code. Deceased was 30 years old at the time of accident and earning monthly salary of Rs. 3,300/-.

.

Compensation amount of Rs. 8,00,000/- in all was claimed.

2(ii) The appellant insurance company opposed the petition primarily on the ground that the driver of the vehicle did not possess a valid and effective driving licence. That the vehicle was being plied in contravention of the terms of insurance policy.

The compensation amount claimed was on the higher side.

2(iii) Respondent No. 5-owner of the vehicle in his reply admitted the averments made in the claim petition. He submitted that the vehicle was comprehensively insured with the appellant and, therefore, appellant was liable to indemnify the owner.

2(iv) The parties led evidence. On conclusion of the trial, learned Tribunal allowed the claim petition and awarded a fixed compensation of Rs. 1,50,000/- each to the widow, minor son and the mother of the deceased. Rs. 1,00,000/- was awarded to the minor daughter of the deceased. In all, compensation amount of Rs. 5,50,000/- with interest @ 9% per annum was awarded in favour of claimants.

Aggrieved against the award, the insurance company has preferred instant appeal.

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3. I have heard Mr. Jagdish Thakur, learned counsel for the appellant-insurer, Mr. Nimish Gupta, learned counsel for .

the owner/respondent No. 5 as well as Mr. Abheyender Gupta, learned counsel for respondents No. 1 to 4/claimants. For convenience, point-wise contentions and submissions of learned counsel for the parties alongwith observations in that regard are being considered hereinafter.

4. Driving Licence 4(i) Learned counsel for the appellant submitted that deceased Raj Kumar was not holding a valid and effective driving licence. It was a case of light goods vehicle falling within the definition of 'goods carriage' under Section 2(14) of the Act. Under Section 14 of the Act, the driving licence for the transport vehicle remains effective only for a period of three years from the date of issue, whereas in the instant case, the driving licence (Ex. R-5) was reflected to be valid for the period 15.11.2012 to 14.11.2017 i.e. for a period of five years. The driving licence, therefore, was invalid. The insurer cannot be held liable to indemnify the insured.

Another argument raised in this regard by learned counsel for the appellant is that driving licence was issued by the State of Manipur, whereas PW-2/widow of the deceased had deposed that her husband had never gone outside Chamba ever ::: Downloaded on - 31/01/2022 23:20:24 :::CIS 6 since his marriage in 2005. This, according to learned counsel for the appellant, leads to an inference that the driving licence Ex. R-5 .

was fake.

4(ii) In terms of Section 14 of the Act, driving licence for a transport vehicle remains effective for a period of five years. In the instant case, driving licence of the deceased was issued for light motor vehicle & light transport vehicle and it covered the period from 15.11.2012 to 14.11.2017. Perhaps the concerned competent authority was unmindful of the amendments carried out in the Act with respect to the duration for which the driving licence could be issued for the transport vehicle. The driving licence could be issued for the transport vehicle in question only for a period of three years i.e. it would have been valid from 15.11.2012 to 14.11.2015. The driving licence of deceased Raj Kumar cannot be construed as fictitious because of statutory provision limiting its validity period. It cannot be discarded in entirety and it would be treated as valid for a period of three years from the date of issue i.e. till 14.11.2015. The accident in question occurred on 14.04.2013. Therefore, in any event, the accident occurred during the validity period of the driving licence.

Insofar as the statement of PW-2 is concerned, though she stated that her husband had never ventured out of ::: Downloaded on - 31/01/2022 23:20:24 :::CIS 7 Chamba, but this statement has to be viewed from the angle that her husband was a driver doing the job for years together.

.

Even at the time of accident he was driving. Merely on the statement of PW-2, driving licence of the deceased issued by State of Manipur cannot be construed to be fake. No evidence in that regard has been produced by the appellant-insurer.

Therefore, it has to be held that the driving licence of Raj Kumar was valid and effective on the date of accident.

5. Status of the driver 5(i) Learned counsel for the appellant next contended that the driver cannot be construed as a 'third party' under Chapter XI of the Act. Claim petition filed by the legal representatives of deceased Raj Kumar (driver) under Section 163-A of the Act was not maintainable. In support of this submission, learned counsel for the appellant heavily relied upon a judgment of apex Court in 2020 ACJ 627, titled Ramkhiladi and another Vs. United India Insurance Co. Ltd. and another.

5(ii) Chapter XI of the Act pertains to insurance of motor vehicles against 'third party' risks. The Chapter consists of sections 145 to 164 providing for compulsory insurance of vehicles against 'third party' risks..

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Section 146 of the Act stipulates that no person shall use except as a passenger or cause or allow any other .

person to use a motor vehicle by that person or that other person, as the case may be, a policy of insurance complying with the requirements of Chapter XI.

Section 147 of the Act provides for requirements of insurance policy and limits of liability. A vehicle owner is required to insure his vehicle against any liability, which may be incurred by him in respect of death or bodily injury to any person including the owner of goods or his authorized representative carried in the motor vehicle or damage to the property of third party and also death or bodily injury to any passenger of a transport except gratuitous passenger of a goods vehicle caused by or arising out of the use of motor vehicle. Section 147 of the Act also provides that policy shall not be required to cover liability in respect of death arising out of and in the course of employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such employee arising out of and in the course of his employment other than a liability arising under the Workmen's Compensation Act 1923 in respect of the death of, or bodily injury to, any such employee........engaged in driving the ::: Downloaded on - 31/01/2022 23:20:24 :::CIS 9 vehicle etc.. Section 147 (1) being relevant is extracted hereinafter :-

.
"147. Requirements of policies and limits of liability.-
(1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which--
(a) is issued by a person who is an authorised insurer; and
(b) insures the person or classes of persons specified in the policy to the extent specified in sub-section (2)--
(i) against any liability which may be incurred by him in respect of the death of or bodily injury to any person, including owner of the goods or his authorised representative carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place;
(ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place:
Provided that a policy shall not be required--
(i) to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen's Compensation Act, 1923 (8 of 1923) in respect of the death of, or bodily injury to, any such employee--
(a) engaged in driving the vehicle, or ::: Downloaded on - 31/01/2022 23:20:24 :::CIS 10
(b) if it is a public service vehicle engaged as conductor of the vehicle or in examining tickets on the vehicle, or
(c) if it is a goods carriage, being carried in the vehicle, or .
(ii) to cover any contractual liability.

Explanation. --For the removal of doubts, it is hereby declared that the death of or bodily injury to any person or damage to any property of a third party shall be deemed to have been caused by or to have arisen out of, the use of a vehicle in a public place notwithstanding that the person who is dead or injured or the property which is damaged was not in a public place at the time of the accident, if the act or omission which led to the accident occurred in a public place."

Section 147 of the Act envisages two kinds of insurance viz. statutory and contractual. By taking the statutory i.e. the 'act policy', the owner of the vehicle fulfills his statutory obligations in terms of the section. If the liability of insurance company is contractual, it then extends to the risk covered under the policy for which additional premium has to be paid. [Re:

(2009) 2 SCC 417 titled New India Assurance Company Ltd.

Vs. Sadanand Mukhi].

The owner of the vehicle is required to take statutory i.e. 'act policy' for covering the risk to the third parties under the provisions of Section 147 of the Act. But no such policy is required for the driver and the other employees of the owner as ::: Downloaded on - 31/01/2022 23:20:24 :::CIS 11 mentioned in the proviso to the section. For his driver, the owner of the vehicle is not required to cover liability other than arising .

under the Workmen's Compensation Act. It is thus clear that the driver is not a 'third' party within the ambit of Section 147 of the Act. The owner of the vehicle is not required to take policy for the driver for covering the risk of 'third' party. The 'act policy' does not extend to the driver of the vehicle. Had there been any statutory obligation for covering the risk of driver under the 'third parties' then the proviso to Section 147 would not have been there. In terms of the proviso to Section 147, the owner is only required to cover the driver under the Workmen's Compensation Act as his employee and not as third party under the Motor Vehicles Act. The driver, therefore, is not a third party within the meaning of Chapter XI of the Act. However, in case the owner of the vehicle insures himself against the risk of liabilities towards the driver in a more comprehensive manner, i.e. greater than covered under the provisions of Workmen's Compensation Act, then that would be a contractual insurance to be honoured by the contracting parties accordingly.

5(iii) Maintainability of Petition under Section 163-A of the Act The driver-employee of the owner of vehicle though is not a third party falling within the provisions of Chapter XI of the ::: Downloaded on - 31/01/2022 23:20:24 :::CIS 12 Act, however, can his legal representatives maintain a claim under Section 163-A of the Act, is the next question. Section 163-A of .

the Act reads as under :-

"163A. Special provisions as to payment of compensation on structured formula basis.--
(1) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle or the authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be.

Explanation.--For the purposes of this sub-section, "permanent disability" shall have the same meaning and extent as in the Workmen's Compensation Act, 1923 (8 of 1923).

(2) In any claim for compensation under sub-section (1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person.

(3) The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time amend the Second Schedule."

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Section 163 of the Act starts with a non-obstante clause of wide nature that provisions of Section 163-A of the Act .

would apply despite contrary provisions, if any, existing in the Act or in any other law in force. This section covers cases where negligence is on part of the victim. The section is by way of exception to Section 166. [Re: (2004) 5 SCC 385,titled Deepal Girishbhai Soni and others Vs. United India Insurance Company Ltd. Baroda]. The victim of an accident or his dependants have an option either to proceed under Section 166 or 163-A of the Act. Under Section 166 of the Act, the claimants have to establish negligence of driver or owner of the vehicle in question. Under Section 163-A of the Act, the compensation is awarded as indicated in the Second Schedule, under structural formula without proof of negligence. Under Section 163-A, the compensation is awarded in terms of the schedule without calling upon the victim or his dependants to establish any negligence or fault on part of owner or the driver of the vehicle. Re: (2007) 5 SCC 428, titled Oriental Insurance Company Ltd. Vs. Meena Variyal and others].

In (2008) 5 SCC 736, titled Oriental Insurance Company Ltd. Vs. Rajni Devi, it was held that liability under Section 163-A of the Act is on the owner of the vehicle. A person ::: Downloaded on - 31/01/2022 23:20:24 :::CIS 14 cannot be both, a claimant as also a recipient. Claim petition under Section 163-A filed by the legal heir of deceased therein, .

who was riding a motorcycle borrowed from the registered owner, was held to be not maintainable. In Ramkhiladi's case supra, a contention was raised that the deceased driver of the motor cycle was not a third party with respect to the insured motor cycle bearing No. RJ 02-SA 7811. He was third party with respect to another motor cycle bearing No. RJ 29-2M 9223 which was also involved in the accident. Claimant had not filed the claim petition against motor cycle No. RJ 29-2M 9223. It was contended that the claim petition was not maintainable as only third party claims were payable under the Act. The deceased driver was not a third party as he had borrowed the vehicle from its registered owner.

Apex Court in Ramkhiladi's case supra held that the claimants did not adduce any evidence to prove that the deceased driver was in employment of the registered owner of the vehicle.

Therefore, the deceased driver cannot be held to be in employment of registered owner of the vehicle. He, however, was a permissible user/borrower of the motor vehicle owned by the registered owner. In such a situation, it was held that deceased cannot be held to be third party and, therefore, his legal heirs cannot maintain a claim under Section 163-A of the Act against ::: Downloaded on - 31/01/2022 23:20:24 :::CIS 15 the owner/insurer of the vehicle which is borrowed by him as the deceased was in the shoes of the owner. His legal representatives .

cannot maintain a claim under Section 163-A of the Act against the owner and the insurer of the vehicle with registered number RJ 02-SA 7811. The relevant paras of the judgment are as under :-

"5.3 While answering the finding recorded by the learned Tribunal on Issue No. 2, it appears that, as such, the learned Tribunal has not at all answered the aforesaid issue. While answering issue No. 2, there is no specific finding whether the deceased driver was in employment of the opponent owner Bhagwan Sahay or not. Even otherwise, no evidence is led by the claimants to prove that the deceased driver was in employment of the opponent -
owner Bhagwan Sahay. Despite the above, while answering issue No. 4 there is some observation made by the learned Tribunal that the deceased driver was in employment of the opponent owner Bhagwan Sahay, which is not supported by any evidence on record. Under the circumstances, the deceased driver cannot be said to be in employment of the opponent owner Bhagwan Sahay and, therefore, he can be said to be permissible user and/or borrower of motor vehicle owned by the opponent owner Bhagwan Sahay. With these findings, the main question posed for consideration of this Court referred to hereinabove is required to be considered.
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5.5 It is true that, in a claim under Section 163A of the Act, there is no need for the claimants to plead or establish the negligence and/or that the death in respect of .
which the claim petition is sought to be established was due to wrongful act, neglect or default of the owner of the vehicle concerned. It is also true that the claim petition under Section 163A of the Act is based on the principle of no fault liability. However, at the same time, the deceased has to be a third party and cannot maintain a claim under Section 163A of the Act against the owner/insurer of the vehicle which is borrowed by him as he will be in the shoes of the owner and he cannot maintain a claim under Section 163A of the Act against the owner and insurer of the vehicle bearing registration No. RJ 02 SA 7811. In the present case, the parties are governed by the contract of insurance and under the contract of insurance the liability of the insurance company would be qua third party only. In the present case, as observed hereinabove, the deceased cannot be said to be a third party with respect to the insured vehicle bearing registration No. RJ 02 SA 7811. There cannot be any dispute that the liability of the insurance company would be as per the terms and conditions of the contract of insurance. As held by this Court in the case of Dhanraj (supra), an insurance policy covers the liability incurred by the insured in respect of death of or bodily injury to any person (including an owner of the goods or his authorized representative) carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle. In the said decision, it is further ::: Downloaded on - 31/01/2022 23:20:24 :::CIS 17 held by this Court that Section 147 does not require an insurance company to assume risk for death or bodily injury to the owner of the vehicle."

.

A person who had borrowed the vehicle from its owner would step into the shoes of the owner. The deceased driver was not a third party. Therefore, legal representatives of such deceased person could not have claimed compensation under Section 163-A of the Act. This is the ratio of judgment in Ram Khiladi's case supra. In the instant case, deceased Raj Kumar had not stepped into the shoes of the owner. He was not the borrower or permissive user of the vehicle but a paid employee of the owner. The deceased was engaged by the owner to drive the vehicle in question. Under provisions of Section 163-A of the Act, the claim petition is maintainable on behalf of victim or his dependants against owner and/or insurer without having to prove negligence. Section 163-A is not only an exception to Section 166 where the claimants have to prove negligence of driver/owner etc. in order to succeed, but it starts with a non-

obstinate clause. The section overrides all the other provisions of the Act. The victim-employee of the owner or his dependants need not be a third party in order to maintain a claim petition under Section 163-A of the Act. However, in order to claim ::: Downloaded on - 31/01/2022 23:20:24 :::CIS 18 compensation from the insurer of the vehicle under Section 163-A of the Act, the victim-employee or his dependants not falling within .

the ambit of third parties under Chapter XI of the Act, have to fall back upon a policy which comprehensively insures the employee/driver of the vehicle to an extent which is more than the liability covered under the Workmen's Compensation Act or in other words, if there is a contractual policy covering the risk of employee/driver more than required under the Workmen's Compensation Act, then claim petition under Section 163-A would be maintainable and not otherwise. Point raised is answered accordingly.

5(iv) Compensation amount The insurance policy of the vehicle in question is Ex.

R-2. It was valid on the date of the accident. As per the insurance policy, separate premium for the paid driver was paid by the owner for the goods carriage vehicle under ENDT IMT.28.

Learned counsel for the appellant has placed on record India Motor Tariff-Endorsements (IMT-ENDT). The IMT Endorsement No. 28 pertains to insured's legal liability under the Workmen's Compensation Act. Being relevant Endorsement IMT.28 is extracted as under :-

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"IMT.28. LEGAL LIABILITY TO PAID DRIVER AND/OR CONDUCTOR AND/OR CLEANER EMPLOYED IN CONNECTION WITH THE OPERATION OF INSURED .
VEHICLE (For all Classes of vehicles.) In consideration of an additional premium of Rs. 25/-
notwithstanding anything to the contrary contained in the policy it is hereby understood and agreed that the insurer shall indemnify the insured against the insured's legal liability under the Workmen's Compensation Act, 1923, the Fatal Accidents Act, 1855 or at Common Law and subsequent amendments of these Acts prior to the date of this Endorsement in respect of personal injury to any paid driver and/or conductor and/or cleaner whilst engaged in the service of the insured in such occupation in connection with the vehicle insured herein and will in addition be responsible for all costs and expenses incurred with its written consent.
Provided always that (1) This Endorsement does not indemnify the insured in respect of any liability in cases where the insured holds or subsequently effects with any insurer or group of insurers a Policy of Insurance in respect of liability as herein defined for insured' general employees;
(2) The insured shall take reasonable precautions to prevent accidents and shall comply with all statutory obligations;

*(3) The insured shall keep record of the name of each paid driver, conductor, cleaner or persons employed in loading and/or unloading and the amount of wages and ::: Downloaded on - 31/01/2022 23:20:24 :::CIS 20 salaries and other earnings paid to such employees and shall at all times allow the insurer to inspect such records on demand.

.

(4) In the event of the Policy being cancelled at the request of the insured no refund of the premium paid in respect of this Endorsement will be allowed.

Subject otherwise to the terms, conditions, limitations and exceptions of the Policy except so far as necessary to meet the requirements of the Motor Vehicles Act, 1988.

*In case of Private cars/motorised two wheelers (not used for hire or reward) delete this para."

It is thus clear that with respect to the liability towards his paid driver, the owner had contracted with the appellant insurance company only under the provisions of the Workmen's Compensation Act. The appellant insurer is, therefore, liable to indemnify the owner only with respect to his liability towards the driver under the Workmen's Compensation Act. Learned counsel for the claimants submitted that in case this Court reaches the conclusion that liability of the insurance company is limited only to indemnify the insured/owner with respect to the liability under the Workmen's Compensation Act, then this Court may re-determine the compensation to be paid to the legal representatives of the deceased workman (driver) under the Workmen's Compensation Act only. It was further submitted that the claimants would be ::: Downloaded on - 31/01/2022 23:20:24 :::CIS 21 satisfied with the amount of compensation determined under the Workmen's Compensation Act.

.

The owner had admitted payment of Rs. 3300/- per month as salary to the deceased driver Raj Kumar. The deceased was admitted to be 30 years of age at the time of accident. The compensation in terms of provisions of Workmen's Compensation Act would then workout as under :-

Rs. 1650 (as per Section 4 of the W.C. Act) X 207.98 (relevant factor) = Rs. 3,43,167/-. The amount of compensation shall be payable to the claimants @ 12% p.a. interest w.e.f. 14.05.2013 i.e. one month after the date of accident.
The contentions raised on behalf of the appellant have been answered. The impugned award dated 31.12.2014, passed by learned Motor Accident Claims Tribunal, Chamba Division Chamba in M.A.C. Petition No. 77/2013 (446/2013) shall stand modified to the above extent. The appeal stands disposed off in the above terms, so also the pending applications, if any.
26th November, 2021(K) ( Jyotsna Rewal Dua ) Judge ::: Downloaded on - 31/01/2022 23:20:24 :::CIS